Citation NR: 9607528
Decision Date: 03/21/96 Archive Date: 04/02/96
DOCKET NO. 94-12 049 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for acute infectious
hepatitis A.
2. Entitlement to an increased evaluation for post-traumatic
stress disorder, currently evaluated as 70 percent disabling.
REPRESENTATION
Appellant represented by: Jane E. Booth Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
The veteran served on active duty from June 1942 to December
1945. He was a prisoner of war of the German Government from
December 1944 to May 1945.
The claims file contains a report of a rating decision dated
in May 1946 wherein entitlement to service connection for
yellow jaundice (hepatitis) was denied.
The Board of Veterans’ Appeals (Board) denied entitlement to
service connection for yellow jaundice in November 1988. The
Board found, among other things, that: yellow jaundice was
acquired in service and resolved with no residual disability;
the decision of May 1946 was final; and there was no new
factual basis establishing entitlement to service connection
for yellow jaundice.
The current appeal arose from a March 1993 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in New Orleans, Louisiana. The RO determined that new and
material evidence had been submitted to reopen a claim of
entitlement to service connection for acute infectious
hepatitis A, but affirmed the prior denial of entitlement to
service connection.
In an October 1993 rating decision the RO associated post-
traumatic stress disorder with generalized anxiety disorder
and granted entitlement to an increased evaluation of 50
percent.
The RO affirmed the denial of entitlement to service
connection for acute infectious hepatitis A when it issued a
rating decision in December 1993.
The RO granted entitlement to an increased evaluation of 70
percent for post-traumatic stress disorder when it issued a
rating decision in August 1995.
The case has been forwarded to the Board for appellate
review.
The Board has expanded the issues for appellate consideration
to include entitlement to an increased evaluation for post-
traumatic stress disorder pursuant to Myers v. Derwinski, 1
Vet.App. 127 (1991).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he should be granted service
connection for acute infectious hepatitis A because he was
treated for this disorder in service, and VA regulations
provide that he be granted service connection with assignment
of a noncompensable evaluation. It is further contended that
post-traumatic stress disorder is productive of total
disablement, thereby warranting entitlement to a 100 percent
evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the claim for service
connection for acute infectious hepatitis A is not well
grounded, and that the record supports a grant of entitlement
to a 100 percent evaluation for post-traumatic stress
disorder.
FINDINGS OF FACT
1. The claim for service connection for acute infectious
hepatitis A is not supported by cognizable evidence showing
that the claim is plausible or capable of substantiation.
2. Post-traumatic stress disorder is productive of totally
incapacitating psychoneurotic symptoms and has rendered the
veteran demonstrably unable to obtain or retain gainful
employment.
CONCLUSIONS OF LAW
1. The claim for service connection for acute hepatitis A is
not well grounded. 38 U.S.C.A. § 5107 (West 1991).
2. The criteria for an increased evaluation of 100 percent
for post-traumatic stress disorder have been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§
3.321(b)(1), 4.7, 4.132, Diagnostic Code 9411 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset the Board acknowledges the appellant’s
meritorious service during World War II which included
confinement as a prisoner of war of the German Government.
As such he was subject to inhumane treatment, deprivation of
basic human needs, cruel treatment, and a hostile
environment. In cases wherein a veteran has particularly
exceptional service as is the present case, the Board
endeavors to compassionately evaluate the evidentiary record
with a view toward liberally applying all pertinent governing
criteria.
I. Entitlement to service connection for
acute infectious hepatitis A.
Under the applicable law, a veteran is entitled to service
connection for a disease or injury incurred in or aggravated
while in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991);
38 C.F.R. § 3.303(b) (1994). A threshold question to be
answered is whether the veteran has presented a well grounded
claim; that is, one that is plausible or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). Although the claim need not be conclusive, it must
be accompanied by supporting evidence. An allegation alone
is not sufficient. Tirpak v. Derwinski, 2 Vet.App. 609, 611
(1992).
Three discrete types of evidence must be present in order for
a veteran’s claim for benefits to be well grounded: (1) There
must be competent evidence of a current disability, usually
shown by a medical diagnosis. See Brammer v. Derwinski, 3
Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App.
141, 144 (1992); (2) There must be competent evidence of
incurrence or aggravation of a disease or injury in service.
This element may be shown by lay or medical evidence. See
Layno v. Brown, 6 Vet.App. 465, 469 (1994); Cartwright v.
Derwinski, 2 Vet.App. 24, 25 (1991); and (3) There must be
competent evidence of a nexus between the inservice injury or
disease and the current disability. Such a nexus must be
shown by medical evidence. See Lathan v. Brown, 7 Vet.App.
359, 365 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93
(1993). In determining whether a claim is well grounded, the
Board is required to presume the truthfulness of evidence.
Robinette v. Brown, 8 Vet.App. 69, 77-8 (1995); King v.
Brown, 5 Vet.App. 19, 21 (1993).
In the veteran’s case, the three elements are not met. There
is no dispute that during service the veteran was
hospitalized for treatment of acute infectious hepatitis A
during June and July 1945. Yellow jaundice was noted as
“slightly symptomatic” when the appellant was examined for
separation from service in September 1945. His skin was
noted as normal and no other pertinent abnormalities were
noted.
A July 1987 VA Prisoner of War Protocol examination included
laboratory studies and there was no evidence of acute
infectious hepatitis A.
In July 1988 the veteran provided testimony at an RO in
support of his belief that service connection was warranted
for acute infectious hepatitis A.
On file is a letter dated in July 1992 from Jay M. Shames,
M.D., and medical treatment reports. Dr. Shames noted he
found no evidence to suggest that the veteran had any
impairment or chronic disease as a result of his having had
hepatitis in 1945.
During a February 1994 hearing before a travel member of the
Board sitting at the RO, the veteran acknowledged that he had
no residual disability resulting from the episode of acute
infectious hepatitis A for which he was hospitalized in
service.
The Board observes that the criteria under 38 C.F.R. § 4.114,
under diagnostic code 7345, of the VA Schedule for Rating
Disabilities, provide for service connection for hepatitis
based upon findings of liver damage with gastrointestinal
disturbances of varying intensities. A 0 percent evaluation
may be assigned for residuals of infectious hepatitis which
is healed and nonsymptomatic. The above diagnostic criteria
mean that a veteran who has had hepatitis with documented
liver damage which is currently healed and nonsymptomatic
will be assigned a 0 percent evaluation. Laboratory studies
during and subsequent to service never demonstrated liver
damage.
The provisions of Adjudication Procedure Manual M21-1 (Manual
M21-1), Part VI, 7.25 require that acute infectious hepatitis
which is reported as cured, healed, or asymptomatic at
discharge will not be service-connected. It has never been
shown that the veteran had a recurrence of acute infectious
hepatitis A, and the post service medical record is negative
for any such recurrence. As noted above, a private physician
had stated the veteran does not have any disability related
to an episode of acute infectious hepatitis A reported in
service, and the veteran himself acknowledges that he has no
residual disability related to service.
If there is no evidence of any current disability associated
with events in service, there can be no well grounded claim.
Rabideau, 2 Vet.App. at 144, see also Brammer, 3 Vet.App. at
225 (in absence of evidence of a current disability, there
can be no valid claim for service connection). Therefore, it
is the judgment of the Board that the veteran has failed to
meet his initial burden of submitting evidence of a well
grounded claim for entitlement to service connection for
acute infectious hepatitis A. If a claim is not well
grounded, the Board does not have jurisdiction to adjudicate
the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). When
no question of law or fact is present over which the Board
has jurisdiction, a veteran’s claim must be dismissed.
38 U.S.C.A. § 7105(d)(5) (West 1991).
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner that differs from
that used by the RO; specifically, dismissal rather than
denial. The Board has, therefore, considered whether the
veteran has been given adequate notice to respond, and if
not, whether he has been prejudiced thereby. Bernard v.
Brown, 4 Vet.App. 384, 394 (1993). In light of the veteran’s
failure to meet his initial burden in the adjudication
process, the Board concludes that he has not been prejudiced
by the decision to dismiss his appeal. In such a situation,
the Board is not denying service connection on the merits,
but rather is finding that the veteran failed to meet his
obligation of presenting a claim that is plausible, or
capable of substantiation, at this time.
The Board views the discussion set forth above as sufficient
to inform the veteran of the elements necessary to complete
his application for a claim for service connection for acute
infectious hepatitis A. 38 U.S.C.A. § 5103(a) (West 1991);
see Robinette, 8 Vet.App. at 77-8; see also Isenhart v.
Derwinski, 3 Vet.App. 177, 179-80 (1992) (VA has a duty to
advise claimant of evidence required to complete
application).
II. Entitlement to an increased
evaluation for post-traumatic stress
disorder, currently evaluated as 70
percent disabling.
Initially, the Board notes that the veteran has presented
evidence of a well grounded claim within the meaning of
38 U.S.C.A. § 5107(a), in that it is plausible that his post-
traumatic stress disorder has not only increased in severity,
but has rendered him totally disabled. The Board is
satisfied that all relevant facts have been properly
developed, and that no further assistance to the veteran is
required in order to comply with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1994), and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the appellant’s post-
traumatic stress disorder. The Board has found nothing in
the historical record which would lead to a conclusion that
the current evidence of record is not adequate for rating
purposes. Moreover, the Board is of the opinion that this
case presents no evidentiary considerations which would
warrant a detailed exposition of the remote clinical
histories and findings pertaining to post-traumatic stress
disorder.
Disability evaluations are based on the comparison of
clinical findings to the relevant schedular criteria.
38 U.S.C.A. § 1155. In determining the rating warranted, it
is the present level of disability that is of primary
concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994).
An August 1987 VA special psychiatric examination concluded
in a finding of generalized anxiety disorder.
A September 1987 VA special psychological evaluation
concluded in a diagnosis of post-traumatic stress disorder.
During a July 1993 VA special psychiatric examination the
veteran reported having been placed in solitary confinement
for five days after he was captured by German forces
subsequent to parachuting from a bomber. During his prisoner
of war confinement he was subjected to intimidation,
including physical and verbal abuse. He also experienced
group death threats, transportation in overcrowded box cars
that came under Allied fire and bombing, and exposure to
extremes of cold, particularly on forced marches. The
appellant stated that he witnessed the beatings of prisoners.
He endured prolonged semi-starvation, with a weight loss of
more than 50 but less than 100 pounds. He added that he
experienced severe infestation with fleas and lice, loosening
of teeth, gum disease, nausea, and skin ulcers. He was
permitted only three baths during captivity, two of which
were in gas chambers. The Russians took him and fellow
captives and held them as virtual prisoners until they were
liberated by American forces.
The veteran was enrolled as a student prior to military
service and completed the requirements for a Bachelor of
Science in chemical engineering shortly after his return to
the United States. He retired from Texaco in 1981 after
thirty-five years of employment as an engineer and worked as
a self-employed engineering consultant until September 1984.
The appellant described chronic psychological and physical
sequelae to the prisoner of war experience. He reported
significant survivor guilt, rage, nightmares, nervousness,
irritability, low frustration tolerance, and discomfort in
crowds. He related conscious efforts to suppress intrusive
memories of prisoner of war experiences and active avoidance
of thoughts and situations which recalled memories of
confinement. He experienced subsequent loss of interest in
and curtailment of previously enjoyable activities.
The veteran reported difficulties with memory. He described
an exacerbation of psychiatric symptoms dating to retirement
and return to VA after avoiding this system for almost 40
years because of frustration and disgust over failure to
acknowledge medical conditions as complications of the
conditions he endured during his prisoner of war confinement.
The examiner noted the veteran demonstrated the full range of
symptoms of post-traumatic stress disorder, which was
diagnosed. The examiner noted that the veteran’s symptoms
had increased during the last few months thereby warranting a
diagnosis of post-traumatic stress disorder, chronic, severe.
The VA examiner judged the veteran to be totally and
permanently disabled by post-traumatic stress disorder of a
chronic and severe nature.
The veteran’s post-traumatic stress disorder is evaluated as
70 percent disabling under diagnostic code 9411 of the VA
Schedule for Rating Disabilities. The 70 percent evaluation
contemplates severe social and industrial inadaptability.
The maximum schedular evaluation of 100 percent requires that
the attitudes of all contacts except the most intimate be so
adversely affected as to result in virtual isolation in the
community. Alternatively, totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior warrant a
100 percent evaluation. Finally, a 100 percent evaluation is
warranted if a veteran is demonstrably unable to obtain or
retain employment due to post-traumatic stress disorder.
38 C.F.R. § 4.132.
As the Board discussed in the foregoing paragraphs, a VA
psychiatrist has determined the veteran to be permanently and
totally disabled due to post-traumatic stress disorder. This
statement on the veteran’s behalf means that the veteran is
precluded from any meaningful social and industrial endeavors
due to the extent of severity of his psychiatric pathology.
It is clear from the record that the appellant is unable to
acclimate himself in a social or industrial environment. His
absence from the labor market and virtual social isolation of
many years has rendered him a poor candidate for even the
most minimal of gainful employment.
From a review of the record it appears unlikely that the
veteran could return to a structured environment as he must
contend with chronic psychiatric symptomatology associated
with previous confinement as a prisoner of war,
symptomatology which he suppressed for many years and for
which he only recently sought help from VA. Accordingly, at
least three of the rating criteria for a 100 percent rating
are independently met in the veteran’s case. Johnson v.
Brown, 7 Vet.App. 95, 97 (1994). In this regard, the veteran
has no meaningful social activity, suffers from disturbed
thought and behavioral processes associated with almost all
daily activities, and most of all the veteran is unable to
work. The Board has no reason to question a VA psychiatric
examiner’s opinion that the veteran is permanently and
totally disabled due to post-traumatic stress disorder. For
the foregoing reasons, the Board concludes that the record
supports a grant of entitlement to a 100 percent evaluation
for post-traumatic stress disorder. 38 U.S.C.A. §§ 1155,
5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.132, Diagnostic Code
9411.
ORDER
The veteran not having submitted a well grounded claim of
entitlement to service connection for acute infectious
hepatitis A, the claim is dismissed.
Entitlement to a 100 percent evaluation for post-traumatic
stress disorder is granted, subject to the governing criteria
applicable to be payment of monetary awards.
ALBERT D. TUTERA
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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